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United States v. Colby

United States Court of Appeals, First Circuit

February 14, 2018

DANIEL COLBY, JR., Defendant, Appellant.


          John L. Calcagni, III, with whom Larry J. Ritchie was on brief, for appellant.

          Benjamin M. Block, Assistant U.S. Attorney, with whom Halsey B. Frank, U.S. Attorney, and Julia M. Lipez, Assistant U.S. Attorney, were on brief, for appellee.

          Before Kayatta, Stahl, and Barron, Circuit Judges.

          STAHL, Circuit Judge.

         Following a two-day jury trial, Defendant Daniel Colby, Jr. was convicted of a single count of possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1). In calculating Colby's sentence, the district court applied a two-level enhancement for possession of a stolen gun, a four-level enhancement for using a gun in connection with another felony, and a two-level enhancement for obstructing justice by committing perjury at trial, which resulted in a guideline range of 84 to 105 months. The district court sentenced Colby to 95 months in prison. On appeal, Colby challenges the district court's application of these three enhancements. After careful consideration, we affirm.


         In March 2015, Colby was living in a camper in Wiscasset, Maine on property owned by his father. Forrest J. Smith was a friend of Colby's father who lived nearby on Mountain Road in Woolwich, Maine. Smith had occasionally worked for Colby's father prior to Colby taking up residence on his father's land. A few days before March 17, 2015, Smith was walking home from Colby's father's house when he encountered Colby on the road. Colby threw an M-80 firecracker at Smith and said "if you turn around right now I'll shoot ya." Smith continued walking back to his trailer.

         On March 17, 2015, at approximately 3:00 PM, Smith heard someone knocking on the door to his trailer claiming to be from the power company. According to Smith's later testimony, Colby burst into the trailer, breaking the lock on the door. In response, Smith told Colby that he had called the cops about the firecracker incident. Colby stuck a gun in Smith's face and said "I ought to shoot you right now for calling the f-ing cops on me." Smith told Colby that he should leave, and Colby left the trailer still carrying the gun. Shortly thereafter, Smith called the police and reported that Colby had threatened him with a gun. Smith later described the gun as having "a short barrel" with "a brown, wooden handle."

         Joey Rogers, who also lived on Mountain Road, testified at trial to the following. On March 17, 2015, he saw Colby walking up the road towards Smith's trailer at around 3:00 PM and, thirty to forty minutes later, he heard someone in his driveway trying to open the door to his truck. Looking over, Rogers saw Colby standing by his truck. According to Rogers, when he asked Colby what he was doing, Colby mumbled and started "pulling something from his sweatshirt pocket." Rogers could not see exactly what the object in Colby's pocket was, but he did see that it had a handle. As Colby walked towards Rogers, Rogers' dog ran at Colby. Colby took off running across the road, through a ditch, and into the woods.

         Three days earlier, on March 14, 2015, Colby had visited Gregory Doray at his mother Stacey Doray's house. Jyllian York, Gregory's sister who was nine months pregnant and on bedrest at the time, also lived with Stacey. At some point that day, Jyllian took Stacey's gun from Stacey's bedroom closet and hid it in her own bedroom closet. According to Jyllian's later testimony, she took the gun to give it to Gregory because she thought Gregory was in trouble with "bad people" and might need it. Colby, Gregory, and Gregory's girlfriend all ended up sleeping in the living room at Stacey's house that night.

         The next morning, on March 15, 2015, Jyllian's boyfriend Cody Wyman discovered that the gun was missing from Jyllian's closet. Jyllian was scared that her mother would find out that she had taken the gun and did not, at that point, tell her mother that the gun was missing. After searching her room for about two hours, Jyllian asked everyone who had spent the night, including Colby, if they had the gun or knew where it was. No one would admit they had it.

         On the evening of March 17, 2015, Jyllian texted and called Colby to ask him again if he had the gun or knew where it was. According to Jyllian, Colby told her that he had taken the gun and left it in a snowbank in the woods near Mountain Road. Jyllian and Wyman went out that night to look for the gun in the woods. In a series of text messages and phone calls, Colby tried to explain where he had put the gun, telling them that it was "stashed in snow . . . [a]t the end of the tracks." When Jyllian and Wyman still could not find the gun, Colby texted that he would "run in the woods with Cody and get it" in the morning.

         The next day, Jyllian and her younger sister returned to the woods to look for the gun. While they were searching, Officer James Read of the Wiscasset Police Department, who was out on patrol, saw their car parked on the side of the road and stopped. When Officer Read asked them what they were doing, Jyllian told him they were looking for a gun. At that point, the police took over the search for the ...

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